Why 2014 was the year of the whistleblower

The FIFA World Cup was one of the sports highlights of 2014. Off the field, however, it has been an annus horribilis for football’s world governing body.¹ FIFA has been dogged throughout by controversy relating to the award of the 2018 and 2022 World Cups to Russia and Qatar.

As the year ends, that controversy has further morphed into farce. On 5 September, FIFA’s independent ethics investigator, Michael Garcia, presented the organisation with a detailed 430-page report on the bidding process for the 2018 and 2022 Cups.² FIFA declined to publish it in full but a week later its ethics “judge”, Hans-Joachim Eckert, released a 42-page summary of the Garcia report.³

In a series of Kafkaesque twists, an internal complaint by Garcia – in essence, an appeal by Garcia against the misrepresentation of his own report – was dismissed as “inadmissible” by FIFA’s appeals committee, prompting Garcia’s resignation.⁴

The same appeals committee that dismissed Garcia’s complaint also dismissed claims by two whistle-blowers that the Eckert summary had breached the condition of anonymity under which they had agreed to cooperate with Garcia and give him intelligence on alleged corruption in both bidding processes. Both of the whistle-blowers claimed that, although the Eckert summary had not named them and some redactions had taken place, a clear inference could still be made as to their identity to the extent that one of the whistle-blowers even claimed that her life was in danger.⁵

The matter has since been considered by FIFA’s Executive Committee. There the farrago continued. On 19 December, it announced that the Garcia report would be published at some point in the future but only in heavily redacted form and mainly because three members of the current FIFA Executive remain under investigation arising from Garcia’s investigation.⁶

Taking a step back from FIFA and its troubles; in many ways, the sporting year 2014 was the year of the whistle-blower.

In July, New Zealand cricketer Lou Vincent admitted match-fixing and received a life ban from all participation in the sport. He subsequently co-operated with anti-corruption officials from both the International Cricket Council (ICC) and the England and Wales Cricket Board, giving information about the spot-fixing of matches.⁷

Around the same time as the Vincent revelations, Emma O’Reilly, the masseuse to Lance Armstrong and his US Postal Service team, launched a memoir, The Race to Truth, based on her experiences during that team’s period of Tour de France domination. An interview⁸ given by O’Reilly to the journalist David Walsh in 2003 was the catalyst for a series of events which ultimately led to the United States Anti-Doping Authority’s⁹ damning report of Armstrong and the stripping of his seven Tour victories. It also coincided with a sustained period of bullying and harassment of O’Reilly by Armstrong.¹⁰

December also saw a former Russian anti-doping official, Vitaliy Stepanov, providing insight into the extent and nature of doping in Russian sport.¹¹ Stepanov’s revelations came after the broadcasting of a German TV documentary, Top Secret Doping: How Russia Makes Its Winners,¹² which claimed that systemic doping was occurring in Russian athletics. The sport’s governing body, the IAAF, already mired in a corruption scandal,¹³ has since been forced to submit to an inquiry by an independent anti-doping commission established by the World Anti-Doping Agency (WADA).¹⁴

All of the above disclosures will continue to play out in 2015 for the various governing bodies – FIFA, the IAAF, the ICC and UCI. More importantly, all of the above reveal insights into the cultural, institutional and legal perceptions of whistle-blowers in sport more generally.

Lou Vincent, for instance, cooperated with the cricket authorities but received a life ban. Although sympathy towards Vincent is in short supply in cricket, and many have seen him as opportunistic; what incentive does a life ban give to other cricket players who might consider becoming whistle blowers?¹⁵

Similarly, the experience of both FIFA whistle-blowers is likely to deter others.¹⁶ Both have claimed to have been the victims of competing agendas within the highly politicised world of football administration and including between so-called “colleagues” on FIFA’s ethics commission.

Emma O’Reilly has similarly claimed in her memoir that her initial disclosures on Lance Armstrong were skewed by the competing agendas of journalists and cycling and sports doping officialdom. Indeed, her memoir is characterised not just by her antipathy to the latter but also, incongruously, by her reconciliation with Armstrong who wrote the foreword to the book.¹⁷

The journalist to whom O’Reilly first spoke in depth, David Walsh, has recently been a key point of contact for Vitality Stepanov.¹⁸ How the Stepanov revelations will be handled will be one of the most interesting sports stories of 2015. His disclosures are important because they underpin a suspicion in sport that some national anti-doping agencies “wear the jersey” and are reluctant to test and prosecute national sporting stars with the due diligence demanded by WADA.¹⁹

The key lesson from all of the above is, as highlighted in 2014 by Transparency International,²⁰ that the lack of uniform international whistle blower guidelines remains a fundamental weakness in protected disclosure facilities throughout sport globally.²¹

Finally, whistleblowing and sport will make the courts in 2015. Substantive hearings are due to take place in a case taken by the US Department of Justice against Lance Armstrong under the Federal False Claims Act.²² The US government can use that Act as a means of pursing anyone who has made false claims for government funds. In this instance, the case is, uniquely, one of defraud by sports doping. Armstrong won six of his seven Tour de France titles with the US Postal Service team as funded by a US government sponsorship contract of approximately $US40million.²³

The litigation, in which the US government is looking for triple damages of $US120million against Armstrong, is premised on evidence provided by Floyd Landis,²⁴ a former teammate of, and now whistle-blower against, Armstrong. Already Armstrong himself has, in part, turned whistle-blower on his sport and in documents released as part of this federal lawsuit, he has revealed for the first time that several key members of his cycling team knew or aided him in doping.²⁵

The scale of the whistle-blower litigation involving Armstrong is however a little distracting. Effective whistle-blowing facilities provide sport at all levels, and not just the elite, with vital initial intelligence on the myriad of problems that now sadly affect sport and including match fixing approaches and the pressures on vulnerable players to abuse supplements or other performance enhancing substances in order to advance or sustain their career.²⁶

In conlcusion, if sport is to avoid further forays into the courts in 2015, and further dents in public confidence, it needs to do more to provide a uniform, genuinely protective disclosure facility for all those who wish to peel back the seedier side of sport.

*** Jack will be speaking at the LawInSport Conference on the 26 February 2015. To find out more and to book your place click here. ***

• Anti-Doping Cricket Cycling Federal False Claims Act FIFA FiFA Ethics Committee FIFA Executive Committee Football Governance International Association of Athletics Federations (IAAF) Qatar Regulation Russia United States of America (USA) Whistleblowing World Cup